Elections 2012: First Monday Debate – An Indian on the Supreme Court?

The U.S. Supreme Court begins its fall session today, the first Monday in October, and a little more than a month away from the presidential election tally.

This election is significant because the Supreme Court is divided, 5-to-4 on most issues, a split that’s often ideological with conservatives in the majority. Over the next four years three justices, Antonin Scalia, Anthony M. Kennedy and Ruth Bader Ginsburg, who are all in their late 70s, could retire (especially if a president is elected who shares their philosophy). President Obama has already appointed two justices, Sonia Sotomayor in 2009 and Elena Kagan in 2010. But those two appointments did not shift the balance on the court, they essentially replaced liberal justices.

But during the next four years that could change. If Mitt Romney is elected, he could appoint a conservative, building on that conservative majority. Or, conversely, if Obama is reelected, his appointments could shift the court to a liberal majority.

If the Supreme Court has not been an issue in the broader campaign, it has been on a few people’s minds in Indian country. Sherman Alexie, the Spokane and Couer d’Alene writer, Tweeted a link to a court story yesterday saying: “The most important reason to vote for Obama.”

Of course, in a more perfect union, Obama would finally appoint an American Indian to the high court. The same Supreme Court that has defined the definition of what it means to be a tribal citizen in the 21st century. The same court that has limited the power of tribal governments to act as sovereigns. The same court that created a crisis, in Carcieri, that tossed out decades of Indian law.

“If the decision is not reversed by Congress, Carcieri will have significant long-term consequences for the United States, tribal governments, state and local governments, local communities and businesses,” Richard Guest, a Native American Rights Fund attorney testified last year. “The United States’ ability to take land in trust for the benefit of Indian tribes is critical to tribal self-governance and economic self-sufficiency. Trust acquisition is not only the central means of restoring and protecting tribal homelands, but is critical to tribal economic development that benefits tribes and their neighboring communities.”

The idea of an American Indian or Alaska Native on the Supreme Court has been promoted by Indian country practically ever since that first wave of attorneys began their practice. But one problem is that too few Native Americans have even been appointed and confirmed to the federal district courts or to the courts of appeals. Most recently Republican Senators blocked the appointment of Arvo Mikkanen to a district court in Tulsa. As Indian Country Today Media Network’s Rob Capriccioso wrote at the time: “If he would have been confirmed by the Senate, Mikkanen would have been the only American Indian to currently serve on the federal bench, out of a total of 875 federal judgeships. He also would have been only the third Native American in history to secure a federal judgeship.”

Hilary Tompkins - Department of the Interior

Hilary Tompkins, a Navajo and the solicitor at the Interior Department. (Department of the Interior)

It’s also far more likely that if a Native American is appointed to the Supreme Court, that will come in a second term because there will be fewer political consequences. The most likely candidate will be younger and most likely a government lawyer (since there are no Indians on the bench to draw from). The only person who fits that profile is Hilary C. Tompkins, a Navajo and the solicitor at the Interior Department.

However in his first term Obama has not been particularly effective when it comes to appointing judges. The New York Times says Obama (a former law professor) “is virtually certain to leave more vacant federal judgeships at the end of his term for the winner of the 2012 election to fill than he inherited from Mr. [George W.] Bush. Beyond sheer numbers, Mr. Obama has reduced his long-term influence by appointing judges who were more than four years older, on average, than Mr. Bush’s.”

Nonetheless at the Supreme Court level there continues to be cases that will impact tribal governments. Just last week, the court reviewed two petitions, one involving claims against the United States by the Samish Indian Nation and another involving Native American voting rights in Arizona.

The Supreme Court, or for that matter, the judiciary itself, has not been an issue in this campaign. A few months ago there was concern from conservatives that Chief Justice John Roberts had shifted because he was the fifth vote in the case that upheld the Affordable Care Act (and by extension the Indian Health Care Improvement Act). “This term’s big cases seem likely to have Roberts in his more accustomed role of voting with his fellow conservatives and leave Justice Anthony Kennedy with his typically decisive vote in cases that otherwise split the court’s liberals and conservatives,” Mark Sherman from The Associated Press wrote. “But Roberts will be watched closely for additional signs that he is becoming less ideologically predictable.”

There’s a lot to watch. Both on the campaign trail and before the court itself.

Mark Trahant is a writer, speaker and Twitter poet. He is a member of the Shoshone-Bannock Tribes and lives in Fort Hall, Idaho. He has been writing about Indian Country for more than three decades. His e-mail is: marktrahant@thecedarsgroup.org.


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Elections 2012: First Monday Debate – An Indian on the Supreme Court?

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